England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		11 April 2008

Mr Justice Munby :

1. This is an application for judicial review by a failed asylum seeker from Sri Lanka. In my judgment the claim fails.

The claim

2. The Claimant seeks to challenge the decision of the Secretary of State dated 28 February 2006 declining to accept submissions from his solicitors dated 13 February 2006 as amounting to a fresh claim for asylum. The application for judicial review was issued as long ago as 1 March 2006. Permission was refused by Keith J on 15 May 2006 but granted on renewal of the application by Mr Rabinder Singh QC (sitting as a Deputy High Court Judge) on 4 August 2006. The substantive hearing came on before me on 30 January 2008. The delay of almost 18 months is unexplained and unacceptable.
3. In the intervening period the Secretary of State has considered the case again twice, maintaining the earlier decision in further letters dated 1 March 2006 and 11 December 2007. In response to each of these decisions the Claimant has filed additional grounds, dated respectively 26 April 2006 and 14 January 2008. Sensibly, Mr Jonathan Martin, who appears for the Claimant, and Miss Susan Chan, who appears for the Secretary of State, have agreed to treat the relevant decision as being that embodied in the letter dated 11 December 2007. It is accordingly on that letter that the argument has focussed and it is on that letter that I concentrate.

The background

4. The Claimant claimed asylum on his arrival in the United Kingdom on 31 October 2000. His application for asylum was refused by the Secretary of State on 11 March 2001. His application on human rights grounds was refused by the Secretary of State on 7 October 2002. His appeal was dismissed by an Adjudicator, Mr C J Deavin, in a determination promulgated on 13 March 2003. (His brother's appeal against a refusal of asylum had previously been dismissed by an Adjudicator, Mr C J E Nicholls, in a determination promulgated on 24 October 2002.) Permission to appeal was refused on 1 May 2003, whereupon his appeal rights were exhausted.
5. The Claimant made further representations on 7 June 2004, which were refused, on the ground that they did not amount to a fresh claim, on 22 June 2004. He applied for judicial review on 6 July 2004. Permission was refused by Forbes J on 20 August 2004. The Claimant renewed his application but withdrew it on 28 September 2004, the day of the hearing, no longer contending that the representations of 7 June 2004 amounted to a fresh claim.
6. The Claimant made a further claim to asylum on 11 October 2004. It was refused on 15 February 2005.
7. The Claimant made a further claim to asylum on 13 February 2006, being the claim which led to the present proceedings.

The basis of the claim

8. The Claimant has throughout put his claim to protection on two grounds:

i) First, fear of the Sri Lankan authorities who, he says, detained him on four occasions between 1999 and 2000.

ii) Secondly, fear of the LTTE, who he claims have targeted his family.

It is convenient to consider them in turn.

Fresh claims – the law

9. First, however, I must briefly refer to the relevant legal framework governing fresh claims.
10. The relevant test is set out in Rule 353 of the Immigration Rules. Submissions will amount to a fresh claim "if they are significantly different from the material that has previously been considered". They will be considered to be significantly different only if the content "(i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection."
11. The approach the court has to adopt is that set out by Buxton LJ, giving the judgment of the Court of Appeal, in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495 at paras [10]-[11]. The court when reviewing the Secretary of State's decision must address the following matters:

"First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return ... The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision."

12. It is quite clear that, subject to those two matters, the Secretary of State's decision is only capable of being impugned on Wednesbury grounds, that is, on the basis of irrationality: see at paras [8]-[9] citing R v Secretary of State for the Home Department ex p Onibiyo [1996] QB 768 and Cakabay v Secretary of State for the Home Department [1999] Imm AR 176.
13. Mr Martin also referred me to the decision of Collins J in R (Lutete) v Secretary of State for the Home Department [2007] EWHC 2331 (Admin) at para [13]. It does not take matters any further.

The issue

14. The Secretary of State's letter dated 11 December 2007 is long, detailed and carefully reasoned. It refers, accurately, to the relevant authorities. In my judgment it is plain that the Secretary of State has asked herself the correct question and directed herself correctly by reference to the relevant authorities. It is also plain that the Secretary of State has, yet again, given the Claimant's case the anxious scrutiny demanded by Buxton LJ. Accordingly the only question is whether it can be said that the Secretary of State's decision is Wednesbury unreasonable.
15. Mr Martin does not really seek to argue the contrary. Indeed he identifies the issue for the court, correctly, as being whether the Secretary of State has acted irrationally in finding that the Claimant's representations do not amount to a valid fresh claim.
16. It is against this background that I turn to consider the Claimant's two challenges.

Fear of the authorities

17. It is common ground that the governing authority is the decision of the AIT in the country guidance case of LP (Sri Lanka CG) [2007] UKAIT 00076. Summarising a lengthy determination the Tribunal said this at para [238]:

"During the course of the determination we have considered a list of factors which may make a person's return to Sri Lanka a matter which would cause the United Kingdom to be in breach of the Conventions. As in previous country guidance cases, this list is not a checklist nor is it intended to be exhaustive. The factors should be considered both individually and cumulatively ... There are twelve and they are not in any order of priority:

(i) Tamil ethnicity

(ii) Previous record as a suspected or actual LTTE member or supporter.

(iii) Previous criminal record and/or outstanding arrest warrant.

(iv) Bail jumping and/or escaping from custody.

(v) Having signed a confession or similar document.

(vi) Having been asked by the security forces to become an informer.

(vii) The presence of scarring.

(viii) Returned from London or other centre of LTTE activity or fund-raising.

(ix) Illegal departure from Sri Lanka.

(x) Lack of ID card or other documentation.

(xi) Having made an asylum claim abroad.

(xii) Having relatives in the LTTE."

18. Earlier, at para [227], the Tribunal had said:

"Our assessment of the various risk factors ... has highlighted that each case must be determined on its own facts. It may be that in some credible cases one of these individual risk factors on its own will establish a real risk of persecution or serious harm on return by the Sri Lankan authorities for Sri Lankan Tamils who are failed asylum seekers from the United Kingdom. For those with a lower profile, assessed on one or a combination of the risk factors we have noted however, such as this appellant, their specific profiles must be assessed in each situation and set against the above non-exhaustive and non conclusive, set of risk factors and the volatile country situation. As can be noted, several factors, such as being subject to an outstanding arrest warrant, or a proven bail jumper from a formal bail hearing may establish a much higher level of propensity to risk than various other factors. In this situation therefore, the assessment exercise is a much larger and more detailed one than may have been the situation up to 2002 and certainly during the period of the cease fire agreement ("CFA"). The current worsening situation in Sri Lanka requires serious consideration of all of the above factors, a review of up to date country of origin information set against the very carefully assessed profile of the appellant."

19. I should also refer to what the Tribunal said at para [236]:

"Other issues which require careful evaluation involve the previous attention paid to the appellant by the Sri Lankan authorities. Questions of whether the appellant has been previously detained and for how long will be significant, as will the reasons for the detention. A short detention following a round-up may be of little significance; a longer detention as a result of a targeted operation will be much more significant. The question of release and how that came about may be important. It should be recognised that the procurement of bribes is a common occurrence in Sri Lanka and that the release following payment of a bribe is not necessarily evidence of any continuing interest. Care should be taken to distinguish between release following the payment of a bribe and release following the grant of bail. Care should be taken in the use of language here. Release on payment of a bribe, and release on bail with a surety could be confused. Both forms of release follow discussions about, and possibly payment of, money. The evidence is that the police in Sri Lanka do, in appropriate circumstances, grant bail. In this particular case bail was granted by a court. If the Tribunal is satisfied that the appellant has jumped bail (and that would include failing to report under a reporting condition), it is necessary to assess the reason for which bail was granted in the first place. Not every young, male Tamil who is arrested will have been so arrested because of sectarian activity. As in any other society a proportion will have committed, or been suspected of committing more mundane criminal, and often minor, offences."

20. The Claimant's case, which as to the essential facts was accepted by the Adjudicator, is that he had been arrested by the authorities on four occasions – on 11 December 1999, on 22 May 2000, on 13 October 2000 and on 25 October 2000 – being requested on each occasion to identify LTTE members, that after being released on the first two occasions he was required to report regularly to the authorities, that on the third occasion he had been specifically targeted by the authorities but was able to secure his release on 20 October 2000 by bribery, and that, fearing for his life, he then decided to leave Sri Lanka. Importantly, as it seems to me, the Claimant accepted before the Adjudicator (see paragraphs 21 and 47 of the Determination) that he had been released on 20 October 2000 without any conditions being attached.
21. The Adjudicator's conclusions were set out, clearly and succinctly, in paragraphs 56-58 of the Determination:

"56 I accept what he tells me. He has been arrested on four occasions but the first two were round-ups and the second [it is clear from the context and from earlier paragraphs of the Determination that this is in fact a reference to the third arrest] related more to his brother that it did to him, although he was kept for a short while and was questioned and treated roughly. I do not believe that he has been the subject of persecution.

57 The last detention in Colombo was because he had not bothered to register and was not specifically directed at him.

58 I do not find that this Appellant has been persecuted in Sri Lanka."

22. Mr Martin placed considerable reliance on a report dated 8 March 2006 prepared by Dr Chris Smith (it was in fact prepared not for the Claimant but for his brother, Tharmalingam Gajendran). So far as concerns this part of his case, Mr Martin relied in particular on paragraphs 41-42 of Dr Smith's report which (speaking of the Claimant's brother) said that his name

"may be on record as a LTTE suspect on account of his detention which means that he is almost certainly of continuing interest to the authorities and, as such, will axiomatically have been placed on one of the two lists that are provided to the immigration services at the airport by the security forces."

23. The Secretary of State's letter of 11 December 2007 (see paragraph 38) dismissed this as having "no relevance to your client's case or his claimed risk", observing that, as noted by the Adjudicator, the Claimant had been arrested on four occasions, that three of these were as part of round-ups and that the other related more to his brother. "There is" – the Secretary of State continued – "no evidence of any continuing interest by the authorities in the Claimant."
24. The remainder of the Secretary of State's reasoning (as set out in paragraphs 48-52 of her letter) can be summarised as follows: It was not accepted, consistent with the findings in LP, that the Claimant would be at risk simply because he is a Tamil. It was also "clear" that the Claimant did not fall within any of the remaining categories of risk identified in LP. Bearing in mind his long absence from Sri Lanka it was considered unlikely that he would now be at risk because of his ethnicity or because of any perceived involvement with the LTTE. Even taking into account his illegal departure from Sri Lanka, his lack of ID and the fact that he had made an asylum claim, there was "little or nothing" in his case to differentiate his case from other Tamils who had returned to Colombo without suffering mistreatment.
25. The Secretary of State concluded in paragraphs 51-53:

"51 This view is supported when it is noted that your client's case does not possess any of the weightier risk factors outlined in the case of LP. In particular, your client does not have a previous criminal record, did not escape from custody or jump bail, but rather was released on the payment of bribes and more importantly, he has not signed a confession or similar document.

52 As noted above, his periods of detention related to three instances of round-ups and one instance where it was his brother and not particularly the Claimant that the army was seeking. No finding has ever been made that there is a record of his detentions, but it is in any event noted, consistent with LP, that where the "detention is an informal one, or [where] it is highly unlikely that the bribe … has been officially recorded, then the risk level to the applicant is likely to be below that of real risk."

53 Having regard to the previous findings made by the Adjudicator … it is considered that the material adduced does not take your client's claims any further."

26. Mr Martin suggested that in paragraph 52 the Secretary of State had materially misunderstood and mis-stated the facts. I do not accept this. The Claimant's witness statement was correctly summarised by the Adjudicator in paragraph 36 of the Determination: "On 12^th October 2000 the LTTE came to the house and enquired about his elder brother … On the following day the army rounded up the village and asked why the LTTE had come to their house. The Appellant was arrested and taken away". In the light of this the Adjudicator appropriately and accurately found in paragraph 56 of the Determination that the Claimant's arrest "related more to his brother that it did to him." Now it may be the case that the army was not "seeking" the brother, rather than the Claimant, but the fact remains that the army was not seeking the Claimant for anything it was being suggested he had done but rather as someone who could throw light on why the LTTE had come to his house looking for his brother.
27. The remainder of Mr Martin's challenge to the Secretary of State's decision can be summarised as follows: On the basis of the accepted facts, factors (i), (ii), (vi), (viii), (ix), (x) and (xi) in the LP list are likely to apply to the Claimant and there is a reasonable chance that on account of this combination of factors the Claimant would now be at risk. The fact that the Claimant was requested to identify LTTE members and required to report after each of the first two arrests (an obligation from which, it is suggested, the Claimant has never been released) is significant, suggesting that there is some official record of both the detention and the reporting condition which, taken in conjunction with Dr Smith's report and the evidence he gave in LP, makes it likely that the Claimant will be recorded on one of the two lists kept by the authorities. This risk is increased by the fact that the occasion of the Claimant's third arrest was a targeted operation by the authorities seeking information about the LTTE.
28. In these circumstances, says Mr Martin, the Claimant is likely to be detained so that his background can be investigated. It is said that the Secretary of State's analysis of the history of the Claimant's arrests and the manner of his releases conflicts with the analysis in paragraph 236 of LP. In this connection Mr Martin also prays in aid what was said in LP at paragraph 240:

"Within Colombo there is no doubt that Tamils are at greater risk of being stopped at a checkpoint or detained in a cordon and search operation or being the subject of a raid on the lodges by the authorities. Those activities do not of themselves mean that a Tamil, without more, would be at risk, but it does mean that on each occasion there is an opportunity for his or her presence to be checked and then one or more of the risk factors could come into play."

What Mr Martin characterises as the Claimant's repeated arrests on suspicion of involvement with the LTTE gives him a profile, it is said, which may cause him to be suspected of involvement with the LTTE.

29. Summarising his case Mr Martin submits that it is reasonably likely that the Claimant will face questioning at a checkpoint, be taken into custody, and there the suspicion in him will increase for all the reasons given, at which point he is likely to be subjected to mistreatment as a suspected LTTE member. In this connection Mr Martin refers to paragraph 216 of LP:

"We agree … that if a person has been credibly found to have refused to co-operate with the security forces, after being detained for membership, or perceived support of the LTTE, there is a higher risk that they will be assumed to be collaborators with the LTTE. In this regard we consider that such evidence needs to be taken into account along with the totality of the evidence and it will not, in every case, be a situation where merely establishing that they have refused to be an informer, will be the basis for a valid claim for asylum on its own."

30. In support of his submissions Mr Martin also relies upon various other materials, including both the assessment of the situation in August 2007 by the British High Commission in Colombo and the COI report for November 2007.
31. I should say a little at this point about Dr Smith.
32. Dr Smith is a well-known expert whose various reports have been relied on by asylum seekers in many Sri Lankan cases. His expertise and integrity is not in doubt. Miss Chan, however, properly drew attention to what the Tribunal had said about his evidence in LP (Sri Lanka CG) [2007] UKAIT 00076, a case in which the Tribunal had the benefit of hearing Dr Smith giving oral evidence and being cross-examined. At para [41 ] the Tribunal said this:

"Some of the evidence given by Dr Smith appeared to be simply wrong. There are a number of places where he demonstrably exaggerated the risk to the appellant. For example, he said ... Yet on close examination it became apparent that there was no basis for saying that at all. As a result doubt has to be cast upon Dr Smith's ability to give expert opinion evidence impartially and objectively. In such a case, it becomes very difficult to put weight on un-sourced, unsupported assertions even if it is said that a particular person said a particular thing on a particular occasion. Dr Smith thus has not fully demonstrated that he has provided an objectively filtered impartial and independent view, based on evidence. The amount of reliance and weight that can be put upon his other assertions, which have not been expressly sourced, or fully quoted, or supported by primary evidence is, as a result, limited."

33. It returned to the theme in paras [I98] and [200]:

"[198] We found Dr Smith's reports and evidence to us were valuable in giving a background on virtually all of the issues we were required to cover, in particular setting the historical perspectives. However, on the core issues of risks on return of persecution and/or serious maltreatment and whether such risks would rise to the level of being real as opposed to remote, this report is merely part of the totality of the evidence we have taken into account. In some respects we consider Dr Smith has made overstatements in his conclusions based on the background evidence that was before him. Conclusions that in his view were "axiomatic" sometimes appeared to us to be primarily speculative. In other areas he appeared to rely on selective pieces of evidence to reach his conclusions. Apart from these flaws however, which clearly do have a tendency to taint other parts of the report, we found his written and oral evidence useful.

…

[200] Thus, Dr Smith's report whilst often good on factual analysis was at times not of such great assistance where opinions were ventured. With limited exceptions, his report did reflect a situation of a well-informed and reasonably balanced commentator who was able to filter out immaterial information."

34. I cannot accept Mr Martin's submissions. He has not succeeded in impugning the Secretary of State's analysis and reasoning and it is, with all respect to him, quite impossible to characterise her decision as irrational.
35. The Secretary of State, in common with the Adjudicator, was perfectly entitled to treat the Claimant as someone who had not been of any specific interest to the authorities. Mr Martin leaves the available evidence far behind when he characterises the Claimant's history as being one of repeated arrests on suspicion of involvement with the LTTE. That is not how the Adjudicator saw it. In all the circumstances the Secretary of State was entitled to adopt the same approach as that which had commended itself to the Adjudicator, just as she was fully entitled to conclude that there was no evidence of any continuing interest by the authorities in the Claimant. The Secretary of State did not err in her careful comparison of the Claimant's case with the principles to be extracted from LP, and was more than justified in stating that the Claimant did not possess any of the weightier risk factors identified in LP. And the Secretary of State was entitled to be dismissive of Dr Smith's report which, after all, had been prepared not for the Claimant but for his brother and which, in the crucial paragraph 41, leapt without explanation or justification from the proposition that the brother "may" be on record as a LTTE suspect – which the Claimant never was – to the assertion that the brother is "almost certainly" of continuing interest to the authorities.
36. Ms Chan submits with compelling force that none of the risk factors to which the AIT attached real weight in LP apply to the Claimant. Furthermore, as she points out, the long period of time that the Claimant has been out of Sri Lanka, makes it even less likely that he would be regarded by the authorities as a threat or of interest to them. She submits, and I agree, that it cannot conceivably be said that an Immigration Judge would realistically find, consistently with LP, that the Claimant is at risk from the authorities.
37. This ground of challenge fails and must be dismissed.

Fear of the LTTE

38. The starting point here is the decision of the AIT in the country guidance case of PS (Sri Lanaka CG) [2004] UKIAT 00297. For present purposes I need not repeat the careful analysis of that decision undertaken by Mitting J in R (Sinnarasa) v Secretary of State for the Home Department [2005] EWHC 1126 (Admin), for I respectfully agree with his analysis and with the summary to be found at paras [10]-[13]:

"[10] The words used by the Tribunal are not entirely consistent. In some passages emphasis is laid on the high profile of targeted individuals. In others, the targets are broken down into three categories. First, those who were in political opposition to the LTTE in high profile positions. Secondly, LTTE defectors. Thirdly, supporters of Colonel Karuna. Miss Richards submits that the emphasis is on high profile targets and that on a proper reading of the decision, it is only high profile targets who are at risk.

[11] I do not agree. It seems to me that both in paragraphs 59 and 71 of the decision which I have cited, the Tribunal is careful to break down those who are at risk into three categories which they and I have specifically identified. Those who were supporters of Colonel Karuna at least after the schism potentially fall into two of those overlapping categories – renegades or traitors to the LTTE and supporters of Colonel Karuna. Potentially, a very small number will fall into the third category: those with a high profile as well.

[12] It does not seem to me, for present purposes, the Secretary of State would be entitled to assume or I would be entitled to assume that the IAT in PS decided only that those with a high or prominent profile in Tamil affairs were potential targets in Colombo.

[13] In a nutshell, the decision in PS, at the very least leaves that question open and acknowledges that some at least of the individuals who are not high profile, are at risk even in Colombo."

39. Sinnarasa was a certification case in which the claim for judicial review succeeded, but it is important to understand why it succeeded and to note by what a narrow margin. At para [24] Mitting J said this:

"This case, in my view, comes very close indeed to the borderline. But for the features that I am about to identify, I have no doubt that the Secretary of State's certification was lawful, rational and should be upheld. The features that is, in my view, just take this case out of that category are these: first, the claimant was an intelligence operative; secondly, after the schism, she did, by leaving with Colonel Karuna and other senior officers associate herself with him for a significant period. That association could have led the majority faction to view her as a loyal supporter of Colonel Karuna and not merely, as is the case in many apparently similar cases, simply as someone caught up in a schism not of their own making and with which they did not wish to associate themselves; thirdly, she agreed with Milvania and Premmini, respectively the women's brigade commander and a member of the women's political main board of the LTTE, both of whom are, on the material which I have seen, undoubtedly high ranking or high profile people within the LTTE; fourthly, there is evidence that she was sought by the LTTE on her flight south; fifthly, there is evidence, in the form of the three letters of 28^th and 30^th May and 4^th June 2004 of an increasingly insistent command by the LTTE main factions commanders that she report for interview; and sixthly, there is the report of Professor Smith".

40. Mitting J went on to observe that careful cross-examination might compel Dr Smith to retreat from the positions he had advanced, but he concluded at para [25]:

"Those features seem, when taken together, to raise the possibility – no more than that – but a possibility which cannot be dismissed as unfounded, that this claimant's claim, if heard by an Adjudicator, would succeed."

41. The decision in PS was endorsed by the Court of Appeal in Nadanasikamani v Secretary of State for the Home Department [2006] EWCA Civ 173. Reference was made by the Court of Appeal in that case to Sinnarasa but I do not read anything said by the Court of Appeal as casting any doubt on Mitting J's analysis.
42. Since Sinnarasa there have been three further decisions at first instance: my judgments in R (Yogachandran) v Secretary of State for the Home Department [2006] EWHC 392 (Admin) and R (Martin) v Secretary of State for the Home Department [2006] EWHC 799 (Admin) and the judgment of Mr Nicholas Blake QC, as he then was, sitting as a Deputy High Court Judge in R (Suganthini) v Secretary of State for the Home Department [2006] EWHC 2524 (Admin). All three were certification cases which raised in one form or another the question of the extent to which PS remained sound and reliable authority in the light of more recent objective and background material about the state of affairs on the ground in Sri Lanka.
43. In Yogachandran, decided on 7 February 2006, having been taken by counsel to the country guidance provided by the Home Office in October 2005, to certain letters in which the UNHCR had sought to respond to the criticisms of its background paper issued in April 2004 which the Tribunal had criticised in PS (see at paras [16] and [61]), and a number of more recent reports from the Asian Human Rights Commission, I concluded at para [33]:

"There is, with all respect to Miss Jegarajah's sustained argument to the contrary, nothing in any of the subsequent materials to which she has drawn my attention which throws the slightest doubt upon the continuing validity of the factual analysis so carefully undertaken by the Tribunal in Re PS. In those circumstances the challenge to the certificate fails."

44. In Martin, decided on 24 February 2006, I had the benefit of a report by Dr Smith which he had prepared following a fact-finding visit to Sri Lanka in October 2005 and of a report by Amnesty International dated 3 February 2006. In para [23] I posed the question:

"is it open to the claimant, in the light in particular of the Amnesty International report and Dr Smith's report, to assert that, at least arguably, things have sufficiently moved on since the Tribunal decided PS as to deprive the Secretary of State of the ability to say that this claim was clearly unfounded?"

45. Answering that question in the negative I said this at paras [24]-[25]:

"[24] … The situation is plainly deteriorating and continuing to deteriorate. I accept, at least arguably, because that suffices for present purposes, that the degree of risk is correspondingly increasing. In particular, I am prepared to accept for present purposes that there may have been, and there are indications that there will continue to be for the foreseeable future, some increase in the degree of risk to low-level LTTE personnel.

[25] But at the end of the day, the question is whether, having regard to the totality of the material before the Secretary of State, including in particular and very importantly the Amnesty International report and Dr Smith's report, it was still open to the Secretary of State to conclude as he did, as recently as in his final decision letter dated 22^nd February 2006, that the claimant's claim was clearly unfounded. In my judgment, the Secretary of State was entitled to reach that conclusion."

46. I added these observations at paras [26] and [28]:

"[26] The picture is a developing one. Things have undoubtedly (I say undoubtedly meaning undoubtedly for the purpose of an application such as this) developed and moved on since the Tribunal decided PS. If matters in Colombo continue to deteriorate in the way described by Dr Smith, then it may be that the time will come when the reliance that can be placed upon the decision in PS will properly diminish and it may be the time will come when the decision in PS will no longer be a safe guide to certification cases such as this. That is speculation and, of course, in part it is dependent on the extent to which Dr Smith's predictions for the future turn out to be correct ...

[28] The situation in Colombo, described and reported upon by Dr Smith, no doubt indicates a deterioration in circumstances since the Tribunal decided PS. But, even taking Dr Smith's report at its highest in favour of the claimant, it does not, in a case of this type, nor does it in this particular case, invalidate the essential thrust of the reasoning of the Tribunal in PS."

47. It may also be appropriate to draw attention to what I said at para [27]:

"Even in a certification case, and even in the case of an expert of the obvious expertise and integrity of Dr Smith, the Secretary of State is not compelled to accept every pronouncement by an expert. The more general, unsourced and unparticularised the report, the easier it may be for the Secretary of State to say that a case is clearly unfounded; the more detailed, sourced and particularised the report, the more significant the report will be."

48. Suganthini was decided on 28 September 2006. Again the court was taken to more recent materials pointing to the increasing breakdown of the 2002 cease-fire, but again the claim failed and again nothing was said to cast doubt on the continuing utility of PS. Indeed, the Deputy Judge at para [8] commented on the fact that:

"various attempts to suggest that [PS] is now so out of date that it could not reasonably be expected to be the basis or the starting point of assessment of particular risk have received no support in various applications that have come to the Administrative Court."

49. So, in my judgment, PS as analysed and explained by Mitting J in Sinnarasa still remains the essential starting point. That said, every case must in the ultimate analysis depend upon its own particular facts assessed in the light of all the up-to-date objective, background and expert material which has been put before the decision-maker – in the present case, the Secretary of State. But there is nothing in the material which has been put before me in thus case (see below) to dislodge PS from the crucial role it has hitherto played and which, in my judgment, it continues properly to play.
50. How then does Mr Martin put his case?
51. The Claimant's case is that his father, an outspoken critic of the LTTE, was killed by them in 1987, that since then the LTTE has killed two of his uncles, two of his cousins and one of his cousin's sons, that the LTTE tried to coerce his brother and indeed came looking for him on 12 October 2000, and that both he and his brothers have received letters from the LTTE requesting them to attend meetings, which none of them has done. In short, he says, he and his family have been targeted by the LTTE.
52. It is accepted that the letters were before the Adjudicator who considered his case, though the Determination does not record the Adjudicator as having made any findings in relation to them. The Adjudicator who had earlier dealt with his brother's claim did, in contrast, deal both with the letters (which had allegedly been sent to both brothers) and with the assertion that the family had been targeted by the LTTE. He treated the letter particularly relied on by the Claimant's brother "with some caution" and found the claim that the family had been specifically targeted by the LTTE to be "inherently unlikely."
53. In relation to the letters Mr Martin again places reliance on Dr Smith's report of 8 March 2006, in paragraph 59 of which he opined that "On many occasions I have read about … cases where the LTTE have sent a written letter to an individual requesting their attendance at a hearing or a meeting. I have never had any reason to doubt that these requests have been anything but genuine. The way in which the LTTE summon people to meetings tends to be officious and bureaucratic."
54. The Secretary of State's letter of 11 December 2007 dealt with this aspect of Dr Smith's report in some detail, but commented (at paragraph 30) that Dr Smith did not appear to have taken into account that the Adjudicator dealing with the Claimant's brother had not merely considered the letters but also found that the Claimant's brother was not a credible witness. Having observed that Dr Smith did not provide his opinion as to whether or not the letters in question were genuine and, moreover, did not provide any objective evidence to support his more general propositions, either as to the provenance of such letters or as to the steps that the LTTE might take, the Secretary of State went on to point out (see paragraph 32) that since the Adjudicator's decision in his brother's appeal, neither the Claimant nor his brother had adduced any objective evidence to corroborate their account as to how these letters had come into their possession or to authenticate them. The Secretary of State then pointed out (see paragraph 36) that on the Claimant's own evidence he had never been detained or tortured by the LTTE, despite his family history, and that no evidence had been provided to show that the LTTE had any present and continuing interest in the Claimant given his long absence from Sri Lanka.
55. The Secretary of State referred to the decision in PS as having rejected one of the UNHCR's key assertions in its report of April 2004. Having summarised the effect of the decision in PS, the Secretary of State concluded in paragraph 43:

"There is no evidence to support your client's implied claim that he is at risk from the LTTE in Colombo. He does not fall within any of the risk factors identified [in PS] and there is no basis for concluding that there is a realistic prospect of him demonstrating to a different Immigration Judge that the LTTE would target him in Colombo."

56. Mr Martin submits that there are "many flaws" in the Secretary of State's approach. He points out that although the letters were before the Adjudicator who dealt with the Claimant's appeal they were not considered by him but, rather, by the Adjudicator who had dealt with his brother's appeal. He submits that the Secretary of State has read too much into that Adjudicator's findings which are in any event, as he points out, referring to AA (Somalia) & AH (Iran) v Secretary of State for the Home Department [2007] EWCA Civ 1040, not binding as against the Claimant. (That is so, but the Secretary of State did not assert that they were and was entitled to have regard to them.) He submits that the Secretary of State has acted irrationally by overstating the effect of the negative findings by the Adjudicator in the brother's case. He criticises the Secretary of State's approach to Dr Smith's evidence, which he relies upon as corroborating the Claimant's evidence.
57. Mr Martin also relies upon Dr Smith's evidence, the evidence of a report by Professor Anthony Good dated 12 April 2006 and other background materials as showing the objective state of affairs 'on the ground' in Sri Lanka in relation to the activities of the LTTE. But none of that material, as I have said, begins to persuade me that PS is not now as good authority as it always was.
58. In summary, the Claimant's case is that his claim that he will be targeted by the LTTE if returned to Sri Lanka is reasonably likely to succeed before an Immigration Judge given (a) the "striking interest" of the LTTE in him and his family – their treatment of his family and apparent interest in the Claimant and his brothers and (b) the escalation of the interest shown in him by the LTTE since he left in 2000 as demonstrated by the letters sent to him in 2002.
59. Leaving the letters on one side, there is in fact, despite what Mr Martin says, strikingly little material to suggest that the LTTE has ever had any interest in the Claimant, whatever may have happened to other members of his family. Here, indeed, the Claimant's evidence is as striking for what it does not say as for what it does say. As the Secretary of State pointed out, the Claimant does not claim ever to have been detained or tortured by the LTTE, despite what has happened to other members of his family. The Secretary of State was entirely justified in concluding – and I would agree – that even taking his case at its highest the Claimant does not fall into the categories of those at risk as explained in PS. And his case, I might add, falls very significantly short of the combination of circumstances which in Sinnarasa "just" sufficed to entitle the applicant in that case to relief.
60. The truth is that the only thing which even arguably gets this case off the ground is the letters. But even there the Claimant faces what in my judgment remain, at the end of the day, insuperable obstacles. The Secretary of State was entitled to have regard to the scepticism expressed by the Adjudicator, albeit in the case involving the Claimant's brother. And she was entitled to treat Dr Smith's report with caution bearing in mind the baldness of his unevidenced opinion and bearing in mind, in particular, that he had not in fact expressed any opinion as to the genuineness of the letters. The Secretary of State, after all, is not obliged to accept every pronouncement by an expert. Most important of all, not least in the light of what Collins J had said in Nasseer v Secretary of State for the Home Department [2006] EWHC 1671 (Admin) at para [37], the Secretary of State was entitled to attach considerable importance to the fact that the Claimant had produced absolutely no evidence to show how he had come by the letters or other independent evidence as to their authenticity. Mr Martin says that the Secretary of State erred in not treating Dr Smith's report as corroborative evidence, but given her justifiable caution about the value of his report she was entitled to conclude as she did and for the reasons she gave.
61. In my judgment the Secretary of State gave the Claimant's case anxious scrutiny, she directed herself correctly in accordance with PS and it is impossible to say that either her reasoning or her decision was irrational. On the contrary.
62. At the end of the day, says Ms Chan, there is simply nothing to suggest that the Claimant would be of such interest to the LTTE that, notwithstanding any failure on his part to report to them in response to the letters, they would have either the interest or resources to pursue him to Colombo. I agree. More importantly, I agree that the Secretary of State was fully entitled to reach that conclusion, and for all the reasons she gave.
63. This ground of challenge also fails.

Conclusion

64. Accordingly, this application for judicial review fails and must be dismissed.
65. I am satisfied that the Secretary of State has given 'anxious scrutiny' to his case, that she has directed herself accurately in law and that she has concluded, for rational and well-reasoned reasons, that the Claimant's further submissions do not satisfy the test for a fresh claim under paragraph 353.
66. I am sorry that this judgment has been somewhat delayed, though I should point out that it was sent to the parties in draft on 19 March 2008, just before the vacation intervened to delay its formal handing down in court.